Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-11
9aF HIGHER COURTS.
.s Of Decisions Rendered at the
sI's apr.ssr # Tyler Sitting Of the
frs Higaer Courts OF Texas.
oorr, and Commission OF Ap'
uprsne lI,nes-Decisions Rendered In
pals me Long Contested Gases
suprems Court

Supreme OSu''
...,ondonce Of the Gazette. No.
0Hn Tex, Nov. 8-Kohn Bros. vs.
GlLnN! August; appeal from Tsrrant.
FsSaei ,+orght this suit to recover of
epge ia, 49, the sum of $3.50, the alleged
sppsi 81 certsin merchandise, alleged to
F'las , u Tr to plaintiffs and to have
1'Te Oo onreTted by defendants. The petit
'sn 'I that plaintiffs were residents
tOa 'I .tste Of Illinois and that defend
'nS , sI ciazsDs Of Tarrsnt county,
srts We Contender, 1885, plaintiffs fled
IeEsss.l, Cor removal of the cause to the
peLIgCC Gates Circuit court for the north
ai. s3.,r:ct of Texaa, under SUBDIVISION
en- 1 lection G39, OF the R s OF U. >. Inc
o. Oh WAS accompanied By ttidaVlt eno
PeIl.'O 70 which defendants FLED exception
Oono, ~ torm The court sustsined the ex-
4 p que que. 'refused the application Tor re-
cspIlTID,. - which plaintiffs excepted. YER
no'A' and n Judgment for defendants:
4 tlc' M a assigns as error the refusal Of
Pp ean-t 70 remove the cause. Appellees
Tie oUt, both the bond Hnd SffilaVit Tor
insIs. Ia are insufficient. The determine
rsplO NV. their validity is decisive OF the
EtOn ~ tbis court. The objection TO the
CO. S9e ri is that the effi4nt h1hn placed
ia. Signature below the jdrss OF the no.
as Emilio, T5Thlic. Instead OF above the same.
3y pITT the affidavit must be held good
mr. ~. onr laws. Our statute provides
a.a' I'll ,ffI7svits shall be in writing ano
De- d nv the psrty making the same, and
e. e. nIsce of signature DOthiDg IS said.
! u u ~ .,5F,arent from The signature OF All
Il. = mot not the same wss placed there for
~. n-oose of subscribing TO the tnstru-
W. ~ The objection to the bond is that;
I'... Il is signed by plaintiff IS attorneys
- suretles, without leave CT tae
oonrt: snd, second, because Inc
49,. .UTaries were, IS alleged, inso!vent.
. ;. .oens that the court below sustained
-, srst onisciion 10 the bond, and MOTH
=. ming ssid az to the second ground
rs nros1me it waived. Held: The great
w. Of authority is that il bond with
4 " attorney as surety is received and
& .a,eS mon without exception being made
.oitit VIII be held good. We have no
.S.tn.e upon this subj co which applies
- nroceedjpgs in civil cases. Our rule
Is. nNo attorney or other officer OF the
rourt snsll be surety 10 any cause pend
i ina in court except upon specisl leave OF
w. court He'd: We think the gen
oval understanding of our courts and OF
n, bar Of our state has been that the
mia wsg merely intended to protect the
rFi,ers of the court against the impor-
tnnjtQ of litigants, and that it Is merely
6irectory. For errors pointed out the
csusa is reversed and reminded with IN
q ctrnc,iong to remove the cause as prayed
for. Gaines, j.
JB. Helm vs.. Weaver; appeal iron
hopkins. Suit by appellee TO foreclos'
ygpdor's lien on land. The note was
qven in renewal of other notes given b.
isVis & Helm, oil Of which notes re-
filmed 8 vendors lien Of l67 aCres oflsnd
The petition alleged that Helm With thu
cSDsept of Wesver, had sold eighty-tWc
xergs of the land, ana this suit WAS Il
to,gclcse lien Of the remainder. Helm
81 demurIed to the petition, the same va
OYerIuled, ard the ruling is assigned q
error. Appellants proposition under thi
assignment is that the vendors lien is no
creature of contract, but arises where tn
relationship of vendor and Vendee enter
& in the sale of the land, sEd there is uDpai
purchase money. Held: The rels-
ZION Of vendor and vendee did ex
lSt between the plainJif and Ia
makers of the original note
and hence & vendors lien existed by op
Grafton Of law. This Wss not destCoye
by the mere substitution of other note
for the purchase money in lieu OF thos
Origiuslly given. l. may be true that th
vendors lien csn not be created by con
tract, yet the Law does not prohibit pa!
ties from cresting by contract lie
which shall btud real estate for the pay
ment Of the purchase money. The lie
reserved In the notes may not have Gee
'lVendor's lien in the technical sense OF ID
word, but 8 missioner Of it does nc
prevent the holder of the note from Ell
forcing the lien against the land to WIG
/! attaches. There was no error in over
ruling the demurrer The Judgment
incorrect in foreclosing the lien on ii
whole l67 acres. The lien shout
have been foreclCsed upon WIS
WsS LET; sitter the sale made
appellant and consented to by appellee
s Appellee did not ask S foreclosure upc
Tue land so sold hV appellant. Had a.
8. pellant called this fact TO the attention {
g lie court IN his motion 10 set aside TT
lacgment, it would doubtless hsYe bee
corrected. The Judgment is so retormt
tic foreclose The lien On the land IT
naming alter The said sale Of lsnd CO.
Sehied to by sppellee. AS sppellal
could have had judgment corrected in Il
& court below and failed to do so, the cos
u MS court in addition TO those adjudgt
against him below will De charged TO hill
reformed and affirmed. Willie, c. J.
W. R, Wiseman VS.. W. R. Baylor
Al appesl from Wilson Appelle
.sFe Indebted 20 appellant upon nc
lgf $500, secured by deed of trust ex
ea'ed oy Baylor and wife upon six lots
slOuna IN the city of Ssn Antonio, viii
81 se'e the separate property Of Mrs. b
WI February 20, 1880, Baylor and "
ssO4ysyed this property 10 Wiseman b.
eeu soSolute on its face; and abe
Suae q, 1854, the latter sold it for 32e
81 ,1cASn. This suit was brought by Ba
VI and wife 10 recover of Wiseman 81
u OF money, less the amounts
..i.Cipal and interest due upon the no
aa8 $50 tSxes admitted TO have be
PAU pa,H oy Wiseman upon the land. 7
psuuon alleged that though the deed q
tsstea 90 olute upon its face, it was u
rs '''ood and intended by the parties
deed In trust for the p1
g.Se OF securing the debt due fri
Sa, to the appellant; that the Il
HeEe worth much more than the de